Grokster > defendants had taken affirmative steps to foster > infringement. >

the court emphasized that facilitating a payment is peripheral to the > actual infringement, which is the unauthorized distribution of a > copyrighted work. >

Perfect 10 Inc. v. Visa International Service > Association, > 494 F.3d 788 (9th Cir. 2007) >

the key issue in secondary liability is the business model.

copyright law is out of sync with developments in technology.

statutory damages for secondary liability should be written out of the Copyright Act.

dramatic growth in online advertising and new business models will continue to shape the legal landscape, and predicted, in particular, an explosion in legal issues related to social networking.

Perfect 10 claimed that by assisting users in locating and obtaining access to third party sites that themselves contained infringing images, Google was guilty of contributory infringement.

Said the Ninth Circuit:  “Google’s failure to change it operations to avoid assisting websites to distribute their infringing content may constitute contributory liability …”.

The District Court was also directed to determine whether Google was immunized from liability for such contributory infringement claims by operation of the Digital Millennium Copyright Act (“DMCA”).  The DMCA immunizes Service Providers such as Google from liability “for infringement [including contributory infringement] of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer or hypertext link,” if the service provider meets certain specified criteria.  The parties disputed whether Google in fact met such criteria, and qualified for the protections of the DMCA.  This issue was left to the District Court on remand.

Google had no contractual or other right to cause such third party websites to stop displaying infringing content.  As such, the Ninth Circuit held, Perfect 10’s vicarious copyright infringement claims were likely to fail.

only delivered html instructions – to wit in-line links – to its users, and not the actual images themselves

a user’s act of “caching” copies of infringing images in his computer as part of his review of such infringing materials was a fair use protected from claims of copyright infringement.

A work is “created” when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work.

“Literary works” are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.

“Publication” is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.